Witness for the Prosecution By Scott Horton

Yesterday the Obama Administration, after a delay of several years, released an important document relating to the Bush Administration’s torture policies: a memorandum by Philip Zelikow, a high-ranking State Department lawyer and confidant of Condoleezza Rice, which aggressively refuted Justice Department memoranda that sought to authorize the use of thirteen “enhanced interrogation techniques” used by the CIA. Zelikow’s memo concluded that the use of these techniques would constitute prosecutable felonies—war crimes. As Zelikow explained in an appearance before the Senate Judiciary Committee in 2009, his memo, when it was circulated in February 2006, caused senior figures in the Bush White House to go ballistic—they actually sought to collect and destroy all the copies.

The memo is not only a significant historical document, it may also provide important evidence in future criminal prosecutions arising out of the Bush-era torture programs. Indeed, the Bush White House fully appreciated this possible consequence, which explains why they tried so hard to make the memo disappear and why Bush-era officials apparently pressed their successors to withhold the memo, delaying its release for three years.

Conservative defenders of the Bush torture team argue that even if the techniques used constituted torture or cruel, inhuman, and degrading (CID) conduct, they were entitled to rely on advice from Justice Department lawyers that said the opposite. In order for a prosecution to succeed, a prosecutor would have to show that the accused understood that what he was doing was a crime. In United States v. Altstoetter, a case in which government lawyers were prosecuted for their role in, among other things, providing a legal pretext for the torture and mistreatment of prisoners, the court fashioned a similar rule, saying that the law requires “proof before conviction that the accused knew or should have known that in matters of international concern he was guilty of participation in a nationally organized system of injustice and persecution shocking to the moral sense of mankind, and that he knew or should have known that he would be subject to punishment if caught.”

The Zelikow memo satisfies both of these elements—it makes clear that the techniques the Justice Department endorsed constituted criminal conduct, and it applied the “shock the conscience” test of American constitutional law to help reach that conclusion. It could therefore be introduced as Exhibit A by prosecutors bringing future charges.